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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re) ) SUSAN SHYNE)File No. 28591-CD-P/L-89 ) For Facilities in the Public Land) Mobile Service at Orinda, California) for Station KNKM872) ORDER Adopted: August 14, 1997 Released: August 14, 1997 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This order denies a Petition for Reconsideration, filed November 13, 1992, by Susan Shyne (Shyne). Shyne seeks reconsideration of the denial by the former Mobile Services Division of the Common Carrier Bureau of her request to reinstate the paging facilities of Station KNKM872 in Orinda, California. II. BACKGROUND 2. Shyne's authorization for Station KNKM872 required construction to be completed before March 15, 1992. Shyne's authorization automatically expired March 15, 1992, as she failed to timely notify the Commission that construction had been completed. On March 27, 1992, within the 30-day period provided by the rules for seeking reinstatement of an expired authorization, Shyne filed an FCC Form 489 stating that she had completed construction with modifications and requested reinstatement. Shyne's filing stated that Pactel Paging of California (Pactel) agreed to install multi-frequency transmitters at the authorized site and that Pactel will grant Shyne the right to use a mutually agreed-upon amount of the capacity of the base station. 3. By the above-referenced letter, the Chief, Mobile Services Division denied reinstatement of Shyne's authorization. He held that: Shyne's proposed use of the facilities of Pactel is not a permissive modification. The original Shyne application did not request authority to use the facilities of a different licensee. Authority to operate in the method Shyne requests would require disclosure and prior approval. Since Shyne has not timely constructed in accordance with its [sic] authorization and the proposed modification can not be done by notification Shyne's request for reinstatement is denied and its authorization is terminated. 4. In her petition for reconsideration, Shyne challenges the finding that use of a multi-frequency transmitter is not a permissive modification that can be reported by an FCC Form 489 without prior approval. Shyne contends that the Commission's rules do not prohibit use of multiple frequency transmitters and that the Commission is aware that their use is a widespread practice in the paging industry. In any event, Shyne argues that her request for reinstatement effectively sought approval for the use of a multi- frequency transmitter, if approval is required. Shyne asserts that denying her request for reinstatement in the absence of a clear policy prohibiting the use of multiple frequency transmitters without prior approval is arbitrary and improper. 5. Shyne maintains that her request for reinstatement is procedurally sound. Relying on AAlert Paging Company of San Francisco Shyne argues that the Commission does not penalize permittees for constructing after the expiration of authorization during the 30-day period in which a request for reinstatement can be filed. She further contends that under 47 C.F.R.  22.43(d), applicants may construct before receiving specific authorization provided that "certain conditions" are met. She cites T-Com, Inc., for the proposition that, under these circumstances, the Commission's routine practice is to reinstate expired construction permits when timely construction cannot be accomplished. III. DISCUSSION 6. It is unnecessary to reach the issue of whether Shyne can use a multi-frequency transmitter without prior approval because her request for reinstatement is defective for other reasons. Initially, we note that Shyne filed her Petition for Reconsideration before the Commission revised the Part 22 rules in the Part 22 Rewrite Order. Our decision, however, would be the same whether we apply either the old or new rules. Under 47 C.F.R.  22.43(a)(3) (1994), the rule in effect at the time Shyne filed her FCC Form 489, an application for reinstatement of an expired construction permit will be considered only if the applicant demonstrates that the failure to file a timely application for extension or notification of completion of construction was due to causes beyond the applicant's control. Shyne has made no such showing here. 7. Shyne attributes the expiration of her authorization to: ...a misunderstanding over the expiration date. Shyne is a small operator whose recordkeeping resources are limited. However, the misunderstanding was rectified and Shyne was able to complete the contractual arrangements and construct within eight business days of the expiration date. . . . . Shyne has taken steps to improve the monitoring system of her business to ensure compliance with the Commission's rules. 8. Shyne's "misunderstanding" does not constitute "causes beyond the applicant's control." By her own admission, Shyne's failure to construct resulted from her not reviewing the permit in a timely manner and apprising herself of the permit's expiration date. These actions were eminently within her control. As the Commission reemphasized in T-Com: Licensees and permittees are expected to be fully cognizant of the Commission's rules and regulations. Those who violate these requirements do so at great risk to the continuation of their authorizations. Contrary to Shyne's reading of that case, the Commission's willingness to reinstate the authorization in T- Com depended on a showing of circumstances beyond the applicant's control, which Shyne has not made here. 9. Additional authority cited by Shyne similarly provides no support for her position. AAlert does not address the question of reinstatement. Rather, the Mobile Services Division rescinded a forfeiture imposed against AAlert for construction during the 30-day period. The Division reconsidered its prior ruling and held that the Commission's rules did not clearly prohibit construction during the 30-day period. AAlert did not address the question of whether the authorization in question should be reinstated. There is no assertion in the case at hand that a forfeiture should be assessed against Shyne for constructing; the only issue is whether reinstatement is appropriate. AAlert is therefore inapposite. Likewise, it is irrelevant whether Shyne's construction is consistent with the conditions set forth in 47 C.F.R.  22.43(d)(3), which permits construction prior to receiving specific authorization under some circumstances. Even if proper, such construction prior to authorization is at the applicant's own risk, and, thus, Shyne's failure to justify reinstatement is determinative. 10. Shyne's application for reinstatement is equally defective under our currently effective rules. In the Part 22 Rewrite Order, the Commission eliminated the rules permitting reinstatement applications. Our rules now require that carriers request an extension of time to complete construction before the end of the construction period instead of seeking reinstatement after the authorization has automatically terminated. Shyne's failure to file an application for extension of time to complete construction prior to the end of the construction period results in the automatic termination of her authorization under our existing rules. IV. CONCLUSION 11. Shyne has shown no basis to reconsider the denial of her request for reinstatement. The fact that she did not show, under 47 C.F.R.  22.43(a)(3) (1994), that her failure to construct was due to circumstances beyond her control renders her request for reinstatement fatally defective. Likewise, Shyne's failure to request an extension of time to complete construction prior to expiration of her authorization under 47 C.F.R.  22.142(c) (1996) results in termination of her authorization. In view of the foregoing, it is unnecessary to reach questions regarding the use of multi-frequency transmitters. V. ORDERING CLAUSE 12. Accordingly, IT IS ORDERED, that, pursuant to authority delegated by Sections 4(i) and 405 of the Communications Act, as amended, 47 U.S.C.  154(i) and 405, authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, and pursuant to Section 1.106 of the Commission's rules, 47 C.F.R.  1.106, the Petition for Reconsideration filed by Susan Shyne on November 13, 1992 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Acting Chief Wireless Telecommunications Bureau